Yogi Berra had it right when he said, “It ain't over ‘til it's over.”
The chairman of the House Committee on Energy and Commerce, Rep. Henry Waxman (D-CA), has said publicly that it is a top priority for him to enact a moratorium on advertising of new prescription drugs.
Waxman and Health Subcommittee chair Frank Pallone (D-NJ) proposed in 2007 to give FDA the authority to impose a three-year moratorium on ads for new prescription medications, pre-approve advertising content, and incorporate labels and language to warning of the unknown risks of taking a drug.
The Pallone restrictions were struck from the FDA Amendments Act by an amendment offered by Reps. Edolphus Towns (D-NY) and Steve Buyer (R-IN). The Towns-Buyer amendment substituted a procedure modeled on the FTC's to determine if an ad is false or misleading. FDA also was authorized to fine advertisers for ads found to be false.
This was not enough for Waxman, who argues an ad moratorium is needed to allow physicians time to learn about the new drug. Waxman also offers another rationale. He believes the ads will expand the audience of patients who might be exposed to a drug with a yet unknown risk. Yet barring advertising will mean neither patients nor caregivers will be given the opportunity to learn about the known risks that must be printed or aired in all ads for medicines.
The Supreme Court repeatedly has struck down attempts to ban advertising, believing that if you assure they have access to critical information, citizens will act in their own best interests. It's a principle that serves our country as well today as when the First Amendment was ratified in 1791.
Jim Davidson is executive director of the Advertising Coalition and a shareholder at the law firm Polsinelli Shughart